REASONS FOR RULING ON MOTION TO INTRODUCE EVIDENCE OF ALLEGED PRIOR DISCREDITABLE CONDUCT and ante mortem statements

LEIBOVICH J.

[1] Mr. Fenn is charged with the second-degree murders of Krassimira Pejcinovski (Krissy), Ratomir Pejcinovski (Roy) and Veneillia Pejcinvoski (Vanna). Mr. Fenn and Krissy Pejcinovski met in 2016 and began dating. He moved into the basement apartment of her home in 2017. The incident took place on March 14, 2018.

[2] The Crown has brought a motion to introduce evidence of alleged prior discreditable conduct by Mr. Fenn. Part of that proposed bundle of evidence includes ante-mortem statements by Krissy Pejcinovski to her co-workers, supervisor and daughter. Mr. Fenn is currently self-represented. However, at the time this motion was initially argued, Mr. Fenn was represented by counsel. As a result, I have been provided with factums and casebooks from the Crown and the defence. In addition, it was agreed that this motion could be argued without calling any viva voce evidence and that the parties can rely on the testimony of the witnesses from prior proceedings. This motion was interrupted halfway through defence counsel’s oral submissions. After a number of appearances, Mr. Fenn discharged his counsel and stated that he wanted to represent himself. However, I appointed his now former counsel as amicus. Amicus made further oral argument on September 20, 2021. Mr. Fenn was given to the next day, September 21, 2021, to make submissions. He declined that opportunity. I provided parties with a bottom line on what was and was not admissible on September 21, 2021, with reasons to follow. These are those reasons.

[3] The defence[^1] opposes the application and argues that the ante-mortem statements are not sufficiently reliable to meet the test for admissibility. The defence submits that at the time the statements were made Ms. Pejcinovski was abusing drugs and alcohol thus affecting her reliability. In addition, all of the proposed evidence is discreditable conduct and not sufficiently probative to outweigh its clear prejudicial effect.

Proposed evidence

[4] The Crown seeks to introduce evidence of Mr. Fenn’s relationship with Krissy Pejcinovski to show that he had an animus and motive to commit murder. The Crown seeks to admit, from a number of sources, evidence that Mr. Fenn and Krissy Pejcinovski argued, broke up, and got back together a number of times, that Mr. Fenn was jealous and controlling, and that Mr. Fenn assaulted Krissy Pejcinovski on three prior occasions. I will detail the individual bits of proposed evidence later in my reasons.

Law and Analysis

[5] The Crown faces two hurdles to have their proposed evidence admitted: 1) the proposed evidence, with minor exceptions, is evidence of prior discreditable conduct, which is presumptively inadmissible; and 2) the source of parts of the proposed evidence are ante-mortem statements of the deceased and are thus hearsay and also presumptively inadmissible.

Prior Discreditable Conduct

[6] The Crown wishes to lead evidence about Mr. Fenn and Krissy Pejcinovski’s relationship to show that Mr. Fenn was jealous and controlling of her and had assaulted her in the past. The Crown submits that evidence of their relationship and Mr. Fenn’s past conduct toward the deceased is admissible to demonstrate motive or animus on the part of Mr. Fenn for committing the offences.

[7] Evidence of an accused’s prior discreditable conduct is presumptively inadmissible: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129 at paras. 96 and 97. Evidence of bad character, general propensity that only goes to show that the accused is the type of person likely to have committed the offence(s) in question is inadmissible. However, such evidence is admissible, if it is relevant and material, and the Crown establishes, on the balance of probabilities, that its probative value outweighs its prejudicial effect: R. v. J.H., 2020 ONCA 165 at para. 54.

[8] The meanings of relevance, materiality, and admissibility was helpfully explained by Watt J.A. in R. v. J.H. at para. 52:

To be receivable in a criminal trial, evidence must be relevant, material and admissible. Evidence is relevant if it tends to prove what it is offered to prove. Evidence is material if what it is offered and tends to prove is something with which the law is concerned. And evidence is admissible if its reception does not offend any exclusionary rule of evidence and its probative value exceeds its prejudicial effect: R. v. Calnen, 2019 SCC 6, 374 C.C.C. (3d) 259, at paras. 107-9; R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 49.

[9] Prior discreditable conduct that shows animus or motive on the part of Mr. Fenn can be admitted if it meets the applicable test. Such evidence may be admitted to show the nature of the relationship between the parties and is relevant to prove the identity of the deceased’s killer and the state of mind that accompanied the unlawful killing. As stated by Watt J.A. in R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at para. 82:

It is commonplace that evidence of the relationship between an accused and the deceased in a prosecution for a crime of unlawful homicide may be relevant to establish an animus or motive on the part of the accused to kill the deceased.

Also see R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29.

[10] In order to establish animus or motive, the Crown may rely on evidence from a number of sources but “whatever the source, the evidence tendered to establish animus or motive must be such to render the existence of the animus or motive slightly more probable than it would be without the evidence, according to everyday experience and common sense. In other words, the evidence tendered to establish animus or motive must be relevant to their proof.”: R. v. Boukhalfa, at para. 191; R. v. J.H.,; R. v. S. (P.), 2007 ONCA 299, 221 C.C.C. (3d) 45, at paras. 27 and 39; R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras. 97-100; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 57.

[11] Things said by the deceased may reflect the deceased’s state of mind. These statements may afford evidence of the nature of the relationship between a deceased and an accused. Evidence of a deceased’s state of mind, contemporaneous with the unlawful killing, may provide a link in a chain of reasoning that could support an inference that the accused bore the deceased some animus or had a motive to kill the deceased. As stated by Watt J.A. in R. v. Skeete, at para. 92:

One method of establishing the contemporaneous state of mind of the deceased, and thus the animus or motive of an accused, is by the introduction through a recipient of ante mortem statements of the deceased: Blackman, at para. 31; Candir, at para. 55. These statements are evidence of the deceased’s state of mind, not that of the accused, and a trial judge should instruct the jury accordingly: Griffin, at para. 71. That said, the connection between a deceased’s state of mind and that of an accused arises by virtue of a pre-existing relationship between the two principals. That the relationship was acrimonious or that the principals had been involved in a dispute in the period leading up to an unlawful killing afford evidence relevant to the issue of motive, because such information may afford evidence of an accused’s animus or intention to act against the deceased: Griffin, at para. 63.

Hearsay ante-mortem statements

[12] As stated, the Crown seeks to introduce evidence of what Krissy Pejcinovski said to her co-workers, her supervisor, and her daughter. These statements are hearsay and to be admissible, they must be reliable and necessary. There is no issue regarding the necessity requirement as Krissy Pejcinovski is deceased. There are number of concerns regarding admitting hearsay statements. As stated by Justice Smith in R. v. Dion, 2021 ONSC 4916 at para. 9.:

There are a number of dangers and pratfalls inherent in any ante mortem statement which must be kept in mind when considering the admissibility of such statements. The declarant may misperceive the underlying facts while the recipient may misperceive the statement. The declarant may misremember the relevant facts underlying the statement while the recipient may misremember the statement itself. As well, both declarant and recipient may make or convey the statement in issue in a misleading manner, either knowingly or unknowingly: see R. v. Baldree, 2013 SCC 35, at para 32.

[13] Therefore, the trial judge must establish, on a balance of probabilities that the proposed evidence meets the threshold reliability standard. Ultimate reliability is for the trier of fact. Even where hearsay evidence satisfies the requirements of a common law exception or qualifies for reception as necessary and reliable, a trial judge retains a discretion to exclude it where its prejudicial effect exceeds its probative value: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3, R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21.

[14] As summarised by Lauwers J.A. in R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at paras. 25-27:

The methodology for trial judges to follow in determining threshold reliability, was prescribed in Bradshaw, at paras. 26-28, and 30-32. I re-state the methodology in brief.

Threshold reliability is established by showing that cross-examination of the declarant is unnecessary because there are: (1) adequate substitutes for testing truth and accuracy (procedural reliability); or (2) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability); or (3) a combination of elements of both procedural and substantive reliability (which plays no role in this case).

The trial judge must specify the statement’s particular hearsay dangers regarding the declarant’s perception, memory, narration, or sincerity, and must evaluate whether and how the dangers specific to the case can be overcome because the truth of the statement cannot be tested by the declarant’s cross-examination.

[15] Procedural reliability is generally established when there are adequate substitutions for cross-examination that can be used for testing the reliability of the evidence such as video or audio recordings of the statements in question, or the fact that statement was given under oath, or that the declarant was aware of, and potentially subject to, the possible consequences of making a false declaration. Substantive reliability is shown by evidence tending to show that the statement is inherently trustworthy because it was made in such a way and in such circumstances so as to give rise to a circumstantial guarantee of trustworthiness. This does not require absolute certainty: R. v. McMorris, at paras. 28-30.

[16] As stated by Lacelle J. in R. v. Smeltzer, 2021 ONSC 4927, [2021] O.J. No. 3859, at para. 47, the following factors are relevant in assessing the circumstances in which a statement is made:

i. the timing of the statement in relation to the event reported;

ii. the presence or absence of a motive to lie on the part of the declarant, or any other reason to doubt the truthfulness of the statement;

iii. the presence or absence of leading questions or other forms of prompting;

iv. the nature of the event reported;

v. the likelihood of the declarant’s knowledge of the event, apart from its occurrence;

vi. whether there would be any difficulties with respect to the declarant’s capacity to perceive or remember events;

vii. the condition of the declarant at the time the statement was made;

viii. the amount of detail in the statement; and,

ix. the demeanour of the declarant at the time the statement was made.

Also See: R. v. J.M., 2010 ONCA 117, at para 54 and R. v. Hindessa, 2009 CanLII 48836 (ON SC), [2009] O,J, No. 3837 at para 14

[17] Corroborative evidence, if it exists, may also be used in the process of establishing substantive and threshold reliability. In doing so, it is first necessary to identify exactly what aspect of the statement in question is being tendered for its truth, identify the hearsay dangers, and then consider any alternate explanations or interpretations of the statement. Having done so, it then becomes necessary to determine if the corroborative evidence available rules out any alternative explanations such that the only conclusion that can be reached is the truthfulness of the statement: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 at para. 57.

[18] In this case, the Crown seeks to introduce ante-mortem statements as evidence of the deceased’s state of mind regarding her relationship with Mr. Fenn, but also in some instances for the truth of their contents.

Probative vs. Prejudice

[19] The court must still consider whether the probative value of the proposed evidence outweighs its potential prejudicial effect. The potential prejudicial effect of the discreditable conduct evidence needs to be assessed in relation to “moral prejudice” (i.e. the danger of convicting the accused “based on nothing more than bad personhood”), and “reasoning prejudice” (e.g. the danger of the trier of fact getting confused or distracted by the multiplicity of incidents; excessive time consumption). As stated in R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 111, an assessment of prejudicial effect should consider:

i) The degree of discreditable conduct disclosed by the evidence;

ii) The extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;

iii) The extent to which the evidence may confuse issues; and,

iv) The ability of the accused to respond to the evidence.

[20] Strathy C.J. noted in R. v. Z.W.C. at paras. 94 and 95 the potential prejudicial effect of evidence of prior discreditable conduct and the challenges it poses, especially in a jury trial:

One of the greatest challenges faced by a trial judge is a request by the Crown to introduce evidence of an accused’s uncharged prior discreditable conduct - sometimes called “extrinsic” discreditable conduct evidence, because it is extrinsic to the conduct on which the indictment is based. In a judge-alone trial, experience and training enables the judge to appreciate the purposes for which such evidence is proffered, and to self-instruct on its limited use(s). A jury obviously does not have the benefit of that training and experience to assist them in discriminating between permitted and prohibited logical thought processes when judging the conduct of an accused. The jury can all too readily use the evidence for an improper purpose. For example, the jury may conclude that the accused is a bad person who did bad things and ought to be punished, whether or not they committed the offences with which they are charged. And, as will be described below, there is a risk that evidence of uncharged allegations will confuse the jury and cause them to lose track of what the trial is all about - whether the prosecution has proven each of the counts on the indictment beyond a reasonable doubt.

For these reasons, a trial judge must take great care to ensure that such evidence goes before the jury only after a determination that its probative value outweighs its prejudicial effect. If the evidence is admitted, the jury must be instructed, in an appropriate and timely way, about the proper and improper use(s) of the evidence. In order to make that distinction, the jury must be clearly informed of the purpose for which specific pieces of evidence may be used.

[21] Mr. Fenn has elected, with the Crown’s consent, to have his trial before a judge without a jury.

Applying the Legal Principles

[22] The Crown seeks to tender evidence that the accused’s and Krissy Pejcinovski’s relationship was tumultuous, accompanied by arguing, acts of jealousy, and assaultive behaviour supporting an animus towards Krissy Pejcinovski and a motive to kill her.

Acts of Alleged Jealousy

[23] The Crown relies on the cumulative effect of the following proposed evidence as probative of Mr. Fenn’s jealousy:

The evidence of Mr. Furze. Mr. Furze is expected to testify that in the month before she was killed, Mr. Furze and Ms. Pejcinovski went out to dinner. The accused found out and he sent a number of threatening texts to Mr. Furze. The texts are contained at tab 3 of the Crown’s application record and were marked as Exhibit 13 at the preliminary inquiry. The Crown also seeks to introduce evidence from Ryan Furze that he also received threatening messages on Krissy Pejcinovski’s Facebook account. Mr. Furze testified that the message was threatening but provided no other context. The Crown also wishes to have Mr. Furze testify that around this time when he was at the gym, he would see the accused and that the accused would throw air punches, towards him and stare at him;
The Crown seeks to introduce evidence that the accused told the victim that he did not want her to give massages to other men. The Crown wishes to lead the evidence from two sources: a) A text from Mr. Fenn to the victim from September 2017 where he tells her not to give any massages to men; and b) through ante-mortem statements from Krissy Pejcinovski to her supervisor, Ms. Robinson, and to her co-worker, Ms. Ferlito. Ms. Robinson is the owner of Spa Sedona and employed Krissy as an esthetician. In the usual course of business, Ms. Robinson kept records, recording each employee’s sick days, vacation, and other related information. In November of 2017, Krissy Pejcinovski requested that Ms. Robinson permit her to not perform massage for new male clients. At Spa Sedona, estheticians were required to perform massages for their clients. Krissy Pejcinovski told Ms. Robinson that Mr. Fenn did not want her performing massages on men. Krissy Pejcinovski told Ms. Robinson that the accused was very jealous and had somebody calling in to try and catch her. Ms. Robinson told Krissy Pejcinovski she had to continue performing massage for existing clients but would not have to do so for new clients. Ms. Robinson made a note of that request in her records. Ms. Ferlito is expected to testify that when she and the deceased were alone in the staff kitchen, the deceased told her that Mr. Fenn did not want her massaging men at work because he thought it was more than a massage.
The Crown seeks to introduce evidence that the accused did not want the victim to wear make up. The Crown seeks to introduce this evidence from Sherry Robinson. She said that around the end of November or in December 2017, Krissy stopped wearing makeup when she came into work. Krissy Pejcinovski told Sherry Robinson that the accused did not like her wearing makeup. Krissy would arrive at Spa Sedona with no make-up and would apply it at the salon and would remove it before she left. Ms. Ferlito, another co-worker, said that around Christmas of 2017, she noticed that Krissy Pejcinovski stopped wearing makeup to work. The two were alone in the staff kitchen. Ms. Pejcinovski told Mr. Ferlito that the accused didn’t want her wearing makeup because he “didn’t want her to look like a slut”.

[24] The defence submits that the Furze evidence is not probative. At most it is propensity evidence that shows that Mr. Fenn has a temper with respect to Mr. Furze. The defence submits that it illustrates anger but that there is an evidentiary gap. It does not help establish animus or motive to kill Krissy Pejcinovski, let alone her children. In addition, the defence complains that they cannot now see the Facebook messages on the victim’s account. They are no longer there. Cross-examination of Krissy Pejcinovski would have been helpful to determine who had access to her account to determine if in fact the message was posted by Mr. Fenn.

[25] In my view, Mr. Furze’s evidence, with one exception, is admissible. Mr. Furze’s interactions with Mr. Fenn took place in the month before the events of March 14, 2018. It gives some insight into the relationship between Mr. Fenn and Krissy Pejcinovski, and shows Mr. Fenn acting in a threatening manner towards Mr. Furze because he is jealous of Mr. Furze’s relationship with Krissy Pejcinovksi. The texts make specific reference to Mr. Furze talking with Krissy Pejcinovksi. While clearly there are prejudicial aspects in the proposed evidence, in my view, they are outweighed by their probative value. The degree of discreditable conduct is slight, especially in comparison to the charged offences. The evidence is also contained in that it stems from Mr. Furze, and given that Mr. Fenn was a party to their interactions, he is a position to respond to Mr. Furze’s recollection of the events in questions and explain the texts, if he desires.

[26] I do, however, agree that Mr. Furze’s evidence that he saw a threatening text on Krissy Pejcinovksi’s Facebook page should not be admitted. Without any context to the threat in my view it is simple propensity evidence. In addition, the probative value of this particular piece of evidence is diminished given that there is a live issue regarding who posted the threat. The absence of the posts also hinder Mr. Fenn’s ability to respond.

[27] With respect to the “no massage” evidence, the defence submits that when one looks at the September 2017 texts (contained at tab 10 of the application record) it is evident that neither party wanted the other to be massaged by anyone else, in another words they indicate a relationship where both were jealous. The defence submits that any evidence flowing from ante mortem statements made by Krissy Pejcinovski are inherently unreliable. The position was set out in the defence factum as follows:

It is the position of the defence that there are not any meaningful safeguards warranting the admission of the statements in this case. It is agreed that no viva voce evidence is required to determine this application, as transcripts of prior-testimony are sufficient in the circumstances. It is submitted that there are a number of factors concerning the declarant, Krissy, which cause doubt and concern regarding the accuracy of the statements. Some of these factors include her drug use in the months leading up to her death, the lack of extrinsic evidence confirming reliability of the statements, and her motive to fabricate. In this case, the unavailability of Krissy for cross-examination will pose significant limitations on Mr. Fenn’s ability to test the evidence or ensure their accuracy.

It is respectfully submitted that it was suspected amongst the witnesses that Krissy was using drugs in the months leading up to her death. It was suspected by some of her colleagues at Spa Sedona that Krissy was not only drinking to excess, but also using drugs with her partner, Mr. Fenn. During this time, witnesses noticed changes to her physical appearance, an increase in work absences and changes in her demeanor and mood. The statements sought to be adduced into evidence by the Applicant were made during this period, when Krissy was suffering from drug addiction and had motive to hide these issues from her co-workers and employer.

[28] I would admit this evidence. The fact that both parties may have exhibited signs of jealousy does not detract from the fact that on its face it shows that Mr. Fenn was jealous. There are also no hearsay concerns regarding the texts sent by the accused. With respect to the ante-mortem statements to Ms. Robinson and Ms. Ferlito, they are both necessary and reliable. The necessity criteria are easily met given that the declarant is deceased. With respect to the reliability assessment, Ms. Robinson made a note of the request in her business journal. In addition, these ante mortem statements are corroborated by Mr. Fenn’s text where he asks her not to massage men. In assessing its probative value, I agree that it outweighs its prejudicial effect. The text was sent in September 2017 and the conversation with Ms. Robinson took place in November 2017 a short period before the events of March 14, 2018. Furthermore, the proposed evidence’s discreditable conduct quotient is fairly low.

[29] I would also admit the “no make up” evidence. The defence submits that there are issues with respect to the reliability of the declarant at the time the statements were made. Krissy Pejcinovski’s performance at work was suffering. She was late and absent from work, having difficulties with drug and alcohol consumption. A very reasonable explanation for her putting on her makeup at work was that she was late for work. There is evidence that she lied to Ms. Robinson.

[30] There is merit to these submissions. However, these submissions are best aimed when addressing the ultimate reliability of the proposed evidence. At this stage I must consider whether, on a balance of probabilities, the proposed evidence meets the threshold reliability standard. In my view it does. The witnesses are able to give direct evidence about the change in Krissy Pejcinovski’s appearance. In addition, Ms. Robinson testified that she observed Krissy Pejcinovski not simply put the makeup on at work, but also remove the makeup before leaving which is corroborative of Krissy Pejcinovski’s statement that Mr. Fenn did not want her to wear it.

[31] The proposed evidence’s probative value exceeds its prejudicial effect. Krissy Pejcinovski stopped wearing makeup in November or December 2017, four or five months before the March 14, 2018 incident. The evidence is confined, its discreditable conduct quotient is fairly low and unlikely to be misused by a jury, even if one was present.

Arguing and breaking up

[32] The Crown seeks to introduce evidence from Krissy Pejcinovski’s daughter, Victoria, that she heard Mr. Fenn and her mother, in the months prior to her death, argue. The defence has submitted that the proposed evidence is weak in that all she could say is that she heard sound coming from the basement vents. The proposed evidence is not evidence of discreditable conduct. The Crown is entitled to call it. Any deficiencies can be addressed in cross-examination and will be assessed at the end of the trial.

[33] The Crown seeks to lead evidence that Krissy Pejcinovski and Mr. Fenn, in the months leading up to March 14, 2018, frequently broke up and got back together from the following sources:

a) The deceased’s daughter. She is expected to testify that they had an on again, off again relationship. That they would fight and then he would propose marriage. Their longest break up was a week.

b) Ms. Robinson is expected to testify that on February 13, 2018, the deceased told her that she would not be missing work because she broke up with her boyfriend. On February 26, 2018, the deceased told her that she did not come to work because she had a fight with her boyfriend.

c) Ms. Ferlito is expected to testify that the deceased told her that she had a February 14, 2018 dinner date with Ryan Furze. At the time, Krissy Pejcinovski told Ms. Ferlito that she had broken up with the accused. A few days later, Krissy Pejcinovski told Ms. Ferlito that she had resumed her relationship with the accused. Krissy Pejcinovski told Ms. Ferlito that the accused found out about Ryan Furze. Ms. Ferlito and Krissy Pejcinovski were alone in the staff kitchen when Krissy Pejcinovski told her that Mr. Fenn found out about Mr. Furze and texted him. The deceased told Ms. Ferlito that Mr. Fenn texted Mr. Furze and threatened to kill him and his family if he ever contacted the deceased again. It is expected that Ms. Ferlito would testify that, in the days leading up to March 14, 2018, the relationship between Krissy Pejcinovski and Mr. Fenn was off and on and “that they would get into a fight and they would break up, and then he would - they would get back together”.

[34] With one exception, I would admit this evidence. Various ante-mortem statements by the deceased regarding the status of her relationship with the accused is clearly admissible as they reflect the deceased's state of mind. “These statements may afford evidence of the nature of the relationship between a deceased and an accused. And the deceased's state of mind is an item of evidence that may be relevant to an accused's motive: R. v. Skeete at para. 84. These statements were made in the months and the weeks leading up to the March 14th incident. They are clearly probative of the deceased’s state of mind.

[35] However, I would not admit the evidence of the conversation between Ms. Ferlito and Krissy Pejcinovski regrading the text that she said Mr. Fenn sent Mr. Furze. The probative value of this evidence is low given that there is no evidence from Mr. Furze that he even received such a text, and given the charges of this case, the nature of the purported threat is highly prejudicial.

March 13, 2018 incident

[36] The Crown seeks to lead evidence from the deceased’s daughter that the night before she was killed the daughter confronted the deceased about the cocaine found in the basement. It is expected that the daughter would testify that she told the deceased to take care of it and get it out of the house and that if she did not, she would call the police. The deceased told her “No, no, don’t worry, I’m gonna deal with it, I’m gonna deal with it,” The daughter than saw her mother going into the basement. The evidence is highly probative as it gives insight into the deceased’s state of mind and intentions right before the fateful events. Given the nature of the charges, introducing evidence that Mr. Fenn consumed cocaine has minimal prejudicial effect, if any, and may also be uncontested at this trial. This evidence may be admitted.

Assaultive behaviour

February 2018 alleged assault

[37] The Crown seeks to introduce evidence that the accused, in February 2018, broke the victim’s phone, grabbed her by and pushed her up against the wall. The Crown seeks to introduce this evidence from Sherry Robinson. In February 2018, Ms. Robinson noticed that the screen of Krissy Pejcinovski’s cell phone was smashed. Ms. Robinson asked how it happened. Krissy Pejcinovski told her that she returned home unexpectedly to find the accused taking some of her things. The accused told Krissy that he was leaving, and they had a fight. The accused pushed Krissy Pejcinovski against a wall and threw her phone against the wall. Ms. Robinson said that she saw the broken phone. Ms. Robinson noted that Krissy Pejcinovski had to leave work unexpectedly to attend to her daughter. Ms. Ferlito said that she saw the broken phone but does not know when. Ms. Findlay, another co-worker, said that in February 2018, Krissy Pejcinovski told her that she and Mr. Fenn had broken up and that Mr. Fenn was moving his property out of the house. On the Monday, Krissy Pejcinovski went home during the day and saw that the accused was there, taking items from the home. Krissy Pejcinovski told Ms. Findlay that she was surprised to find the accused there and that he became aggressive and shoved her up against the wall and broke her phone. Ms. Findlay observed that the front of her phone was shattered. Ms. Findlay testified that Krissy Pejcinovski was upset and had tears in her eyes.

[38] The Crown seeks to introduce this evidence not just as indicative of the deceased’s state of mind but also for the truth of its contents, to prove that Mr. Fenn pushed her against the wall and broke her phone.

[39] The defence submits that there is no corroboration for this statement and as noted earlier, any and all statements emanating from Krissy Pejcinovski are suspect.

[40] I am satisfied that with respect to this alleged incident there are circumstantial guarantees of trustworthiness that allow the evidence to pass the initial reliability threshold. Furthermore, the evidence’s probative value exceeds it prejudicial effect. I say this for the following reasons:

The defence is correct that at the time the statements were made there were issues regarding Krissy’s performance at work. However, there is no evidence that those issues drove her disclosure of the incident. The described incident happened when she left work early because of an issue regarding her daughter. In other words, she had already told work that she was leaving early, there was no need to fabricate a different reason. There is no evidence that the deceased had anything to gain when she made the disclosure;
The disclosure occurred when Ms. Robinson noticed the broken phone. The broken phone is a piece of corroborating evidence.
Ms. Robinson made a record that Krissy Pejcinovski left unexpectedly from work, corroborating her claim that the incident started when she arrived home unusually during the day;
Ms. Findlay is also able to testify regarding Krissy Pejcinovski’s demeanour when she disclosed the incident;
She disclosed the incident the next day; and,
The evidence is highly probative. Irrespective of whether the incident actually occurred as described, it is evidence of her state of mind in the weeks before the incident regarding her relationship with Mr. Fenn. It is admissible for that purpose and it is also admissible for the truth of its contents to show that the incident actually occurred. In assessing the prejudicial effect, I note that the evidence is relatively contained and far less serious than the subject matter and Mr. Fenn is in a position to respond, if he chooses.

[41] Again, at this stage I am not stating that I accept that the incident occurred, merely that the Crown is entitled to lead evidence in this regard.

Summer/Fall alleged assaults

[42] The Crown seeks to lead evidence from one of the deceased’s co-workers about two alleged earlier assaults. Ms. Ferlito is expected to testify that in the late summer or early fall of 2017 the deceased told her that she was at a pub called the “Portly Piper” with Mr. Fenn. Mr. Fenn believed that she was looked too friendly at another guy. Mr. Fenn became angry and left the restaurant. He slapped her across the face and told her, “don’t disrespect me like that”. The deceased told Ms. Ferlito, that a few weeks later after this incident Mr. Fenn and the deceased were at home. They got into a fight. She swore at him and he slapped her in the face. Ms. Ferlito said that Krissy told her about the two incidents on separate occasions and she believed they were close in time to when they occurred.

[43] The Crown seeks to have this evidence admitted not just for evidence of the deceased’s state of mind but for the truth of its contents to prove that these assaults happened.

[44] In my view these statements are not sufficiently reliable or probative to merit their admissions. Harkening back to the helpful list of factors set out by Lacelle J. in R. v. Smeltzer, at para. 47, I note the following:

Ms. Ferlito is unclear when the events took place;
Ms. Ferlito is unclear when the events were reported, except that they reported close in time to the events;
Ms. Ferlito does not provide any evidence of the deceased’s condition at the time she described the events;
Ms. Ferlito does not provide any evidence of the deceased’s demeanour at time the events were reported; and
There is no corroborating evidence for the events.

[45] Even if sufficiently reliable, in my view, they are not sufficiently proximate in time. The incidents may have taken place as far back as the summer of 2017. I appreciate that in a judge alone trial the risk of prejudice is low, but the proposed evidence must still have enough probative force to merit its admission.

Conclusion

[46] With respect to the evidence that I have admitted, I wish to be clear that, at this stage, I am merely allowing the Crown to call the evidence. What evidence I accept, what weight I assign it or what inferences I draw from it will be decided at the end of the case after hearing all the evidence and all the submissions.

Justice H. Leibovich

Released: September 24, 2021

OSHAWA COURT FILE NO.: CR-18-15006

DATE: 20210924

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

CORY FENN

REASONS FOR JUDGMENT

Justice H. Leibovich

Released: September 24, 2021

[^1]: The defence opposed the motion and filed written material in support of that opposition. The defence made oral submissions opposing the motion. Amicus completed those oral submissions and argued why the evidence should not be allowed. For sake of convenience I have simply referenced the submissions opposing the admission of the evidence as defence’s submissions.

R. v. Fenn, 2021 ONSC 6269

Case Summary

REASONS FOR RULING ON MOTION TO INTRODUCE EVIDENCE OF ALLEGED PRIOR DISCREDITABLE CONDUCT and ante mortem statements

Proposed evidence

Law and Analysis

Prior Discreditable Conduct

Hearsay ante-mortem statements

Probative vs. Prejudice

Applying the Legal Principles

Acts of Alleged Jealousy

Arguing and breaking up

March 13, 2018 incident

Assaultive behaviour

February 2018 alleged assault

Summer/Fall alleged assaults

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2